affirmatively and asserted jurisdiction.
17 ITLOS decided unanimously that it had
such jurisdiction to render the advisory opinion as requested.
18
3 Advisory Jurisdiction of the Full Tribunal: Legal Basis
Whereas the advisory jurisdiction of the Sea-Bed Chamber is clearly articulated in
the Convention,
19 there is no such unequivocal expression of advisory jurisdiction of
the full Tribunal either in UNCLOS or in the ITLOS Statute.
20 Article 138 (1) of the
ITLOS Rules is the only provision which provides for advisory competence of the
full Tribunal.
21 In the Advisory Opinion, ITLOS held that the full Tribunal had legal
competence to exercise advisory jurisdiction pursuant to UNCLOS and the ITLOS
Statute.
22 The legal basis for this assertion is examined analytically by reference to
the Advisory Opinion. In that Opinion, the Tribunal dealt with arguments in support
of and against the full Tribunal’s advisory jurisdiction advanced by States and
international organizations. The arguments are mainly based on three provisions;
namely, Article 288 (2) of UNCLOS, Article 21 of the ITLOS Statute and Article
138 of the ITLOS Rules. These provisions are referred to by ITLOS judges as well as
by scholars discussing the advisory function of the full Tribunal.
23 In this chapter,
they are examined objectively, to determine whether any or all of them can serve as
proper legal basis for the full Tribunal’s advisory jurisdiction.
3.1 Article 288 (2) of UNCLOS
UNCLOS Article 288 (2) provides explicitly that “a court or tribunal referred to in
Article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this
Convention, which is submitted to it in accordance with the agreement”. Three
points of observation arise in respect of this provision.
The first observation is that Article 288 is found in Section 2 of Part XV of the
Convention, under the title “Compulsory Procedures Enabling Binding Decisions”.
It is submitted in this context that any dictum described as “advisory opinion” cannot
at the same time, be a “binding decision”. The two expressions are conceptually
17 Advisory Opinion, para. 40.
18 Advisory Opinion, para 62.
19 UNCLOS Article 191.
20 See Ruys and Soete (2016), p. 156.
21 See Ndiaye (2010), pp. 580–581.
22 See Gao (2012), p. 84.
23 Ibid, p. 20; see Wolfrum (2013), p. 54. See also Tanaka (2015), p. 323.
744
M. Yu
17 ITLOS decided unanimously that it had
such jurisdiction to render the advisory opinion as requested.
18
3 Advisory Jurisdiction of the Full Tribunal: Legal Basis
Whereas the advisory jurisdiction of the Sea-Bed Chamber is clearly articulated in
the Convention,
19 there is no such unequivocal expression of advisory jurisdiction of
the full Tribunal either in UNCLOS or in the ITLOS Statute.
20 Article 138 (1) of the
ITLOS Rules is the only provision which provides for advisory competence of the
full Tribunal.
21 In the Advisory Opinion, ITLOS held that the full Tribunal had legal
competence to exercise advisory jurisdiction pursuant to UNCLOS and the ITLOS
Statute.
22 The legal basis for this assertion is examined analytically by reference to
the Advisory Opinion. In that Opinion, the Tribunal dealt with arguments in support
of and against the full Tribunal’s advisory jurisdiction advanced by States and
international organizations. The arguments are mainly based on three provisions;
namely, Article 288 (2) of UNCLOS, Article 21 of the ITLOS Statute and Article
138 of the ITLOS Rules. These provisions are referred to by ITLOS judges as well as
by scholars discussing the advisory function of the full Tribunal.
23 In this chapter,
they are examined objectively, to determine whether any or all of them can serve as
proper legal basis for the full Tribunal’s advisory jurisdiction.
3.1 Article 288 (2) of UNCLOS
UNCLOS Article 288 (2) provides explicitly that “a court or tribunal referred to in
Article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this
Convention, which is submitted to it in accordance with the agreement”. Three
points of observation arise in respect of this provision.
The first observation is that Article 288 is found in Section 2 of Part XV of the
Convention, under the title “Compulsory Procedures Enabling Binding Decisions”.
It is submitted in this context that any dictum described as “advisory opinion” cannot
at the same time, be a “binding decision”. The two expressions are conceptually
17 Advisory Opinion, para. 40.
18 Advisory Opinion, para 62.
19 UNCLOS Article 191.
20 See Ruys and Soete (2016), p. 156.
21 See Ndiaye (2010), pp. 580–581.
22 See Gao (2012), p. 84.
23 Ibid, p. 20; see Wolfrum (2013), p. 54. See also Tanaka (2015), p. 323.
744
M. Yu